Friday, December 03, 2004

Good writers explain abstract principles by using clear and simple examples. Allow me to illustrate. A better writer than me would have explained contract law's "duty" to mitigate damages something like this:

Suppose you contract with someone to shingle your roof. Because the roofer botches the job, breaching the contract, rain leaks into your house. You can assuredly win damages for the value he has denied you, the cost of repairing what he has done improperly, and probably the initial damage caused by the leak. But you cannot stand around watching water flood your house and expect to recover for all the harm thereby wrought. You have a "duty" to take reasonable steps to mitigate your damage, such as by putting a bucket under the leak. You'll suffer no punishment if you fail to so mitigate, of course—hence the scare quotes—but neither can you make the roofer pay the price of your laziness.

Shame on me for writing so obscurely!

3 comments:

Anonymous
said...

Does the law distinguish people's varying abilities to mitigate or is that up to the judge's discretion? In your example, suppose I'm blind and don't know about the leak until signifigant damage is done. Was I supposed to have a Seeing Eye dog to alert me by barking? Does the law assume a "typical" person standard and not allow for exceptions or require dogs?

Say I go on vacation after the repairs are made. Is that a valid excuse for failing to "mitigate" or was I suppose to poor water on the roof for 2 hours to see if any leaks appear. Can the law tell the victim it was her own fault for not having an insurance policy? Please amplify and explain, if you want to.

Basically, Anon. of 2:22, determinations of mitigation turn on the peculiar facts of each case. If you think of the logic of mitigation, that makes perfect sense. The question is not what the average person could have done by way of self-help, but rather what the party asserting damages could have done. Why? Because we want to encourage that party--and not some hypothetical average person--to make those self-help efforts.

The standard also makes sense because of its implications on contracts. If we were to judge reasonable self-help by an average standard, it'd be easy to swindle the blind person. But when the standard is based on the merits of the individual case, the other party to the contract has no incentive to take advantage of the disability. In effect, he's assigned responsibility because in this particular case he's the least cost avoider of water damage.